Costigan v. Gould , 5 Denio 290 ( 1848 )

By the Court, Beardsley, Ch. J.

On the 7th of September, 1839, the plaintiff intermarried with Francis Costigan, and thus acquired an inchoate right of dower in all the real estate whereof he was then seized in fee simple. The land in which dower is now sought to be recovered had been conveyed in fee to said Costigan in 1799, and he remained seized thereof at the time of the marriage, unless the deeds given in evidence by the defendant, and which bore date on the first of May 1839, had been executed before the marriage took place. The only question of any moment, made on the trial, was as to the time when said deeds were executed, and, as that was a question of fact for the jury, the verdict cannot be disturbed if the charge of the judge was correct.

Where nothing appears in the evidence to show that a deed was not executed at the time when, by its date, it purports to have been, the law presumes it was executed at that time. (1 Shep. Touch. 72; Cowen & Hill’s Notes, p. 298.) On this point there was no error in the charge of the judge. But as there was positive evidence that the deeds were not executed until sometime after their date, that furnished no indication whatever of the time when they were in fact executed. The defendant set up that the execution of the deeds preceded the marriage, and he was bound to maintain that allegation. He held the affirmative of the issue, and if he failed to maintain it, the plaintiff would be entitled to a verdict in her favor. And I must say that after a careful scrutiny óf the evidence in the case, I am unable to find any thing to warrant the conclusion that these deeds were executed before the marriage took place.

It appears by the deed to Daniel B. Anderson that the life estate was conveyed to him in consideration of an agreement on his part to support and maintain said Costigan during his natural life. It was also shown that said Anderson went into possession of the land embraced in the deeds, about the first day of May, and from which time Costigan resided with him until the marriage took place. If it had not been conclusively established that the deeds were executed sometime after the day of their date—which was the first of May—the fact that Anderson then went into possession and commenced his support of Costigan, would have rendered it probable that the deeds were then executed. But this supposition was utterly overthrown by the evidence in the case, which showed that the true time of the execution of said deeds was, at least, a considerable space of time after their date. There is nothing then in that date, or in the fact of possession taken and support furnished, which tends at all to show that these conveyances were made before or after the day of the marriage.

Nothing then remains to show the true time but the evidence of the subscribing witness, Mr. Harris. He knew they were executed some time after they bore date and before the 7th of November, 1839, for on that day he proved their due execution before a commissioner; but he was unable to say they were not executed in October of that year, although he believed they were before that time. No time in particular was suggested by him, and he said expressly that “ he could not say they were” executed “ before the 7th day of September, 1839.” This was the all important day, for then the plaintiff acquired a right to dower. No circumstance was mentioned by the witness tending to show that the deeds were executed before the day of the marriage, nor did he express a belief that such was the fact. In these respects the case was barren of all evidence ; indeed, every thing stated by this witness, seems to me to have tended strongly to show that the deeds were executed af ?r the 7*b of September rather than before that day. But the burden of maintaining that the deeds were executed before the marriage rested on the defendant, and unless there was a preponderance of proof in his favor the verdict must necessarily pass against him.

There was one fact stated by this witness which, if not absolutely decisive, seems to me very important on this question. Mr. Harris says he was directed by the grantor, Costigan, and one of the grantees, Daniel B. Anderson, to ante-date the deeds, but it does not appear that any reason for this direction was given by them to the witness. We must not, however, infer from this that they acted without a motive or an object in giving the direction, and if the evidence discloses no obvious cause for it, if the deeds were executed at one period, and none whatever can be imagined if they were executed at a different period, that circumstance may enable us to determine satisfactorily, that the true time was subsequent to the marriage. If the deeds were made before the marriage took place, no cause or object is shown for ante-dating them; but if the marriage had already taken place the object is then most palpable, for antedating the deeds was the only mode by which it could be hoped to cut off the plaintiff’s right of dower. I know that chicanery and fraud are not to be presumed; still, they may be proved; and I cannot suppress my strong conviction that these deeds were ante-dated for the sole purpose of depriving the plaintiff of a right to dower which then existed in her favor. I would not have it supposed that Mr. Harris is regarded as a party to any such contrivance, for there is nothing to cast the slightest suspicion upon him. He did as he was directed, not being’apprized of the object, whatever it may have been, in ante-dating the deeds.

I think the judge should have told the jury plainly that it was for the defendant to show affirmatively that these deeds were executed before the marriage, and if he had failed to establish that fact the plaintiff was entitled to a verdict; that it must be assumed the grantor and the grantee, who directed the deeds to be ante-dated, had some object in giving that di* rection, and acted with a view to some end. And as no motive was shown to exist, if the deeds were executed prior to the marriage, while a very controlling one was shown, if they were < made after the marriage, this was cogent evidence that the latter was the true time. If these views had been given to the jury it is hardly probable they would, upon the evidence as stated in this case, have found for the defendant. At all events the case is a very proper one to be presented to another jury, with such instructions as will bring their minds to a consideration of the real points involved in it. There should be a new trial.

New trial ordered.